Michels, Deighan and R.s. Cohen. The opinion of the court was delivered by Michels, P.J.A.D.
Defendant City of Atlantic City appeals from a judgment of the Law Division that declared that it was legally liable to pay the counsel fees and costs in the total sum of $25,779.98 incurred by plaintiff John V. Sparkman in his successful defense against criminal and disciplinary charges. Plaintiff cross-appeals from a post-judgment order of the trial court that denied his application for counsel fees and costs incurred in prosecuting this action.
Plaintiff, a police sergeant employed by the Atlantic City Police Department, was indicted with others by the Atlantic County Grand Jury and charged with conspiracy to facilitate the commission of the crime of official misconduct in violation of N.J.S.A. 2C:5-2 and N.J.S.A. 2C:30-2a and official misconduct in violation of N.J.S.A. 2C:30-2a. Thereupon, plaintiff was suspended without pay and served with a preliminary notice of disciplinary action. The preliminary notice of disciplinary action was subsequently amended to charge plaintiff with the violation of various Atlantic City Police Department rules and regulations. All of the criminal and disciplinary charges arose out of plaintiff's attendance at a party at the home of another
police officer at which it was alleged that cocaine and marijuana were used and possessed and that plaintiff failed to perform his duty as a police officer by arresting those using and possessing the illegal drugs.
Plaintiff requested that defendant provide him with counsel for his defense pursuant to the provisions of N.J.S.A. 40A:14-155 or reimburse him for the counsel fees and costs that he would incur in the defense of these actions. When defendant failed to respond to his inquiry, plaintiff retained Messrs. Cooper, Perskie, April, Niedelman, Wagenheim & Levenson, to represent him. Apparently, plaintiff had sought their advice before making his request for representation or reimbursement from defendant.
The indictment was dismissed by the trial court on motion before trial for the reasons, among others, that "the evidence presented to the Grand Jury was inaccurate, inadequate and incompetent;" that there was "[p]rosecutorial misconduct both prior to, as well as during, the Grand Jury presentation," and that there was a "[v]iolation and abridgement by the Prosecutor of [plaintiff's] Sixth and 14th Amendment rights. . . ." The disciplinary charges were dismissed on the ground that defendant "failed to produce any evidence to show that [plaintiff was] guilty of any of the charges brought against him." Plaintiff thereupon sought reimbursement for his counsel fees and costs. On plaintiff's motions to proceed summarily and for summary judgment, the trial court without rendering a written or oral decision, ordered defendant to pay plaintiff's counsel fees and costs incurred in defending the criminal and disciplinary charges. However, the trial court denied plaintiff's application for counsel fees and costs incurred in the prosecution of the instant action. This appeal and cross-appeal followed.
The pivotal issue raised on this appeal is whether plaintiff qualifies for reimbursement of counsel fees and costs under the 1986 amendment to N.J.S.A. 40A:14-155. Prior to the 1986 amendment, N.J.S.A. 40A:14-155 provided:
Whenever a member or officer of a municipal police department or force is a defendant in any action or legal proceeding arising out of or incidental to the performance of his duties, the governing body of the municipality shall provide said member or officer with necessary means for the defense of such action or proceeding, but not for his defense in a disciplinary proceeding instituted against him by the municipality or in a criminal proceeding instituted as a result of a complaint on behalf of the municipality. If any such disciplinary or criminal proceeding instituted by or on complaint of the municipality shall be dismissed or finally determined in favor of the member or officer, he shall be reimbursed for the expense of his defense.
It is clear under this statute that the municipal employer's duty to provide the "necessary means for the defense" of criminal charges against its police officers does not arise in every case. The police officer is not entitled to reimbursement unless the proceedings arose out of or were incidental to performance of the police officer's duties. Meyerson v. Bayonne, 185 N.J. Super. 437, 441 (App.Div.1982), certif. den., 91 N.J. 567 (1982). The legislative intent in enacting this statute was discussed in Van Horn v. Trenton, 80 N.J. 528 (1979). There, Justice Mountain, writing for the Supreme Court, stated:
Although the statements accompanying the bills which eventually produced N.J.S.A. 40A:14-155 indicate little more than that the provision was intended to "increase the morale of police departments," Statement Accompanying Senate Bill No. 26 (1946), the terms of the statute itself evidence an apparent legislative concern that police officers might be discouraged from effectively pursuing their duties if they were forced to provide their own defense against civil actions and criminal charges brought by disgruntled "victims" of law enforcement. Police officers, by the very nature of their duties, are exposed to a substantial risk that such civil or criminal actions will be initiated, regardless of their merits. See generally Township of Edison v. Hyland, 156 N.J. Super. 137 (App.Div.1978); Township of Edison v. Mezzacca, 147 N.J. Super. 9 (App.Div.1977). The possibility of having to incur legal expenses to answer for one's conduct as a police officer would most certainly temper one's performance of police duties. We are convinced that the Legislature, by enacting N.J.S.A. 40A:14-155, was obviously attempting to minimize the intrusion of this concern into the momentary decisions which police officers are continually required to make. [ Van Horn v. Trenton, supra, 80 N.J. at 536-537].
The Supreme Court, however, judicially expanded the scope of the statute beginning with Van Horn v. Trenton, supra, continuing with Valerius v. Newark, 84 N.J. 591 (1980), and culminating in Moya v. New Brunswick, 90 N.J. 491 (1982), with ...